GRYDER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MICHELLE G., )

)

Plaintiff, )

)

v. ) 1:25CV142

)

FRANK J. BISIGNANO, )

Commissioner of Social Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Michelle G., brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security

(the “Commissioner”), denying Plaintiff’s claim for Supplemental

Security Income (“SSI”). (Docket Entry 1.) The Commissioner has

filed the certified administrative record (Docket Entry 5 (cited

herein as “Tr. __”)), and both parties have submitted dispositive

briefs in accordance with Rule 5 of the Supplemental Rules for

Social Security Actions under 42 U.S.C. § 405(g) (Docket Entry 9

(Plaintiff’s Brief); Docket Entry 12 (Commissioner’s Brief); see

1 The United States Senate confirmed Frank J. Bisignano as the Commissioner

of the Social Security Administration on May 6, 2025, and he took the oath of

office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure, Frank J. Bisignano should substitute as Defendant in this suit.

Neither the Court nor the parties need take further action to continue this suit

by reason of the last sentence of Section 205(g) of the Social Security Act, 42

U.S.C. § 405(g).

also Docket Entry 13 (Plaintiff’s Reply)). For the reasons that

follow, the Court will enter judgment for the Commissioner.2

I. PROCEDURAL HISTORY

Plaintiff applied for SSI on March 19, 2021 (Tr. 215-24),

alleging a disability onset date of January 1, 2019 (see Tr. 215).3

Upon denial of that application initially (Tr. 85-94, 106-10) and

on reconsideration (Tr. 95-105, 112-14), Plaintiff requested a

hearing de novo before an Administrative Law Judge (“ALJ”)

(Tr. 117). Plaintiff (represented by counsel), Plaintiff’s mother,

and a vocational expert (“VE”) testified at the hearing. (Tr. 45-

84.) The ALJ subsequently ruled that Plaintiff did not qualify as

disabled under the Act. (Tr. 24-44.) The Appeals Council

thereafter denied Plaintiff’s request for review (Tr. 11-16, 212-

14), thereby making the ALJ’s ruling the Commissioner’s final

decision for purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] has not engaged in substantial gainful

activity since March 19, 2021, the application date.

2 On consent of the parties, “this case [wa]s referred to the

[undersigned] United States Magistrate Judge . . . to conduct all

proceedings . . ., to order the entry of judgment, and to conduct all post-

judgment proceedings []herein.” (Docket Entry 8 at 1.)

3 Notwithstanding Plaintiff’s alleged onset date of January 1, 2019, she

lacked eligibility for SSI benefits until her application date of March 19, 2021

(see Tr. 215). See 20 C.F.R. § 416.202 (explaining that a claimant remains

ineligible for SSI benefits until date he or she files SSI application); 20

C.F.R. § 416.501 (stating that a claimant may not receive SSI benefits for any

period that predates first month he or she satisfies eligibility requirements,

which cannot precede application date).

2

. . .

2. [Plaintiff] has the following severe impairments:

[g]eneralized anxiety disorder; lumbar degenerative disc

disease; bilateral knee degenerative arthritis; right-

handed carpal tunnel syndrome; chronic right foot

fractures; asthma[;] obesity[;] and depression.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

4. . . . [Plaintiff] has the residual functional

capacity to perform light work . . . except [l]ift and/or

carry 20lbs occasionally and 10lbs frequently; sit for

6hrs, stand and/or walk for 6hrs; operate foot controls

with the right foot occasionally; frequently handle,

finger, and feel with right upper extremity. [Plaintiff]

can climb ramps and stairs occasionally, never climb

ladders, ropes, or scaffolds, balance never, stoop

occasionally, kneel occasionally, crouch occasionally,

crawl occasionally. [Plaintiff] can never work at

unprotected heights, occasionally work near moving

mechanical parts, in humidity and wetness, dust, odors,

fumes, and pulmonary irritants, in extreme cold and in

extreme heat; frequent work in vibration. [Plaintiff]

can perform simple, routine tasks, and make simple work-

related decisions; is able to interact with supervisors,

colleagues, and the public frequently; can maintain

concentration, persistence, and pace two hours at a time,

but would be off-task 3 percent of time in an 8-hour

workday in addition to regularly afforded breaks.

. . .

5. [Plaintiff] is capable of performing past relevant

work as a mail clerk. This work does not require the

performance of work-related activities precluded by

[Plaintiff]’s residual functional capacity.

. . .

3

6. [Plaintiff] has not been under a disability, as

defined in the [] Act, since March 19, 2021, the date the

application was filed.

(Tr. 29-39 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

the Court “must uphold the factual findings of the ALJ if they are

supported by substantial evidence and were reached through

application of the correct legal standard.” Hines, 453 F.3d at 561

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402

U.S. 389, 401 (1971)). “It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro

4

v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal

quotation marks omitted). “If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

is substantial evidence.” Hunter, 993 F.2d at 34 (internal

quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the Court], therefore, is not whether

[the claimant] is disabled, but whether the ALJ’s finding that [the

claimant] is not disabled is supported by substantial evidence and

was reached based upon a correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means the “‘inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

5

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).4 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

age, education, and work experience in addition to [the claimant’s]

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of the Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).5 A finding adverse to the

4 The Act “comprises two disability benefits programs. The Disability

Insurance Benefits Program provides benefits to disabled persons who have

contributed to the program while employed. [SSI] provides benefits to indigent

disabled persons. The statutory definitions and the regulations . . . for

determining disability governing these two programs are, in all aspects relevant

here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations

omitted).

5 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

(continued...)

6

claimant at any of several points in the SEP forecloses an award

and ends the inquiry. For example, “[t]he first step determines

whether the claimant is engaged in ‘substantial gainful activity.’

If the claimant is working, benefits are denied. The second step

determines if the claimant is ‘severely’ disabled. If not,

benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.6 Step four

then requires the ALJ to assess whether, based on that RFC, the

claimant can perform past relevant work; if so, the claimant does

not qualify as disabled. See id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

5 (...continued)

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

7

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the claimant’s RFC] and [the claimant’s] vocational

capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the

Commissioner cannot carry its “evidentiary burden of proving that

[the claimant] remains able to work other jobs available in the

community,” the claimant qualifies as disabled. Hines, 453 F.3d at

567.7

B. Assignment of Error

In Plaintiff’s first and only issue on review, she asserts

that “[t]he [ALJ] erred as a matter of law as there is no logical

bridge between the evidence and the RFC’s arbitrary and conclusory

limitation of 3% off task time.” (Docket Entry 9 at 8 (all-caps

font and block formatting omitted); see also Docket Entry 13 at 1-

9.) In that regard, Plaintiff maintains that “[c]ourts within the

Fourth Circuit have stated that, where an ALJ includes a percentage

for time off task in the RFC, an explanation of the precise amount

of time off task is critical” (Docket Entry 9 at 9), and that “the

‘ALJ must explain and support that conclusion with substantial

7 A claimant thus can establish disability via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

8

evidence’” (id. (quoting Berry v. Commissioner of Soc. Sec., No.

3:21CV240, 2022 WL 3354778, at *2 (W.D.N.C. Aug. 12, 2011)

(unpublished))). Thus, Plaintiff argues, “[w]hile ‘an ALJ is not

required to determine a percentage of time off-

task[,] . . . . where, as here, the evidence substantiates

difficulty with sustained concentration and the ALJ renders a

conclusion regarding a precise percentage [of off-task time], the

ALJ must explain and support that conclusion with substantial

evidence’” (id. at 10 (quoting Kane v. Commissioner, Soc. Sec.

Admin., No. 17CV1252, 2018 WL 2739961, at *2 (D. Md. May 14, 2018)

(unpublished))), “with reference to the record” (id. (citing Abdul

K. v. Kijakazi, No. 21CV2434, 2022 WL 2789363, at *2-3 (D. Md. July

15, 2022) (unpublished))). In Plaintiff’s view, “*[i]n the absence

of explanation, the Court is left to pontificate on where the ALJ

came up with the [three]-percent figure and why this limitation

adequately accounts for Plaintiff’s limitations[,]’” which

“guesswork [] Mascio and its progeny prohibit this Court from

doing.’” (Id. (quoting Kennedy v. Berryhill, No. 3:18CV405, 2019 WL

3664936, at *4 (W.D.N.C. Aug. 6, 2019) (unpublished) □□□□

® Plaintiff cites additional cases in the Fourth Circuit she contends

remanded for inadequate explanations by the ALJs of time off-task percentages in

the RFCs. (See Docket Entry 9 at 10-13 (citing Michelle A. v. Dudek, No. 24CV8,

2025 WL 948446, at *4 (D. Md. Mar. 28, 2025) (unpublished) (five percent),

Armstrong v. Commissioner of Soc. Sec. Admin., No. 3:23CV124, 2024 WL 463311, at

*2 (W.D.N.C. Jan. 4, 2024) (unpublished) (10 percent), recommendation adopted,

2024 WL 460262 (W.D.N.C. Feb. 5, 2024) (unpublished), Cross _v. Kijakazi, No.

4:22CV4333, 2023 WL 10947229, at *4-6 (D.S.C. Sept. 20, 2023) (unpublished) (no

more than five percent), recommendation adopted, 2024 WL 1349042 (D.S.C. Mar. 28,

2024) (unpublished), Beth Ann 0. v. Kijakazi, No. 21CV1877, 2022 WL 3360277, at

(continued...)

According to Plaintiff, the ALJ’s above-described error does

not qualify as harmless, because “[t]he evidence in the record

shows it is possible Plaintiff could be off task more than 10% of

the workday, which would be work preclusive.” (Id. at 14 (block

formatting omitted); see also id. at 17 (noting VE’s testimony

that, “if the individual were off task more than 10%, there would

be no work available” (citing Tr. 81)).) In support of that

assertion, Plaintiff contends that she might experience off-task

time (A) “to recuperate after walking, standing, using stairs, or

doing light lifting” due to shortness of breath, back pain, and leg

pain (id. at 15 (bold font omitted)), (B) “due to panic attacks”

which require her to “lay [sic] down for 15 minutes or longer” (id.

(bold font omitted)), and (C) caused by “intermittent explosive

disorder, hear[ing] voices, [] mood swings, . . . get[ting] into

arguments[,]” and “depression [that] affects [her] energy level and

motivation to complete tasks” (id. (internal quotation marks

omitted)). For the following reasons, Plaintiff’s arguments fall

short.

8 (...continued)

*3 (D. Md. Aug. 15, 2022) (unpublished) (eight percent), Keith L. v. Saul, No.

20CV930, 2021 WL 1723084, at *2 (D. Md. Apr. 30, 2021) (unpublished) (five

percent), Bibey v. Saul, No. 1:19CV2690, 2020 WL 7694552, at *4 (D. Md. Dec. 28,

2020) (unpublished) (five percent), Cannon v. Berryhill, No. 1:18CV285, 2019 WL

7875158, at *5-6 (W.D.N.C. Dec. 23, 2019) (unpublished) (nine percent),

recommendation adopted, 2020 WL 596944 (W.D.N.C. Feb. 6, 2020) (unpublished),

Patricia W. v. Berryhill, No. 1:19CV9, 2019 WL 6790512, at *3 (D. Md. Dec. 12,

2019) (unpublished) (10 percent), Kilgo v. Saul, No. 3:18CV312, 2019 WL 3719609,

at *4 (W.D.N.C. Aug. 7, 2019) (unpublished) (nine percent), Conary v. Berryhill,

No. 2:18CV1228, 2019 WL 3216041, at *9 (S.D.W. Va. June 25, 2019) (unpublished)

(no more than five percent), recommendation adopted, 2019 WL 3211268 (S.D.W. Va.

July 16, 2019) (unpublished).

10

RFC measures “the most a claimant can do despite” any physical

and mental limitations, Hines, 453 F.3d at 562; 20 C.F.R.

§ 416.945(a), and represents a claimant’s “‘ability to do sustained

work-related physical and mental activities in a work setting ona

regular and continuing basis,’” i.e., “*8 hours a day, for 5 days

a week, or an equivalent work schedule,’” Hines, 453 F.3d at 562

(emphasis omitted) (quoting Social Security Ruling 96-8p, Policy

Interpretation Ruling Titles II and XVI: Assessing Residual

Functional Capacity in Initial Claims, 1996 WL 374184, at *1 (July

2, 1996) (“SSR 98-6p”)). An ALJ must determine a claimant’s

exertional and non-exertional capacity only after considering all

of a claimant’s impairments, as well as any related symptoms,

including pain. See id. at 562-63; 20 C.F.R. § 416.945(b). The

ALJ then must match the claimant’s exertional abilities to an

appropriate level of work (i.e., sedentary, light, medium, heavy,

or very heavy), see 20 C.F.R. § 416.967, and any non-exertional

limitations may further restrict the claimant’s ability to perform

jobs within an exertional level, see 20 C.F.R. § 416.969a(c).

An ALJ need not discuss every piece of evidence in making an

RFC determination, see Reid v. Commissioner of Soc. Sec., 769 F.3d

861, 865 (4th Cir. 2014); however, “the ALJ must both identify

evidence that supports his conclusion and build an accurate and

logical bridge from that evidence to his conclusion,” Woods v.

Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (internal emphasis,

11

quotation marks, and brackets omitted). Here, despite the absence

of an express discussion by the ALJ of the basis for the three

percent off-task time limitation, no basis for remand exists,

because the ALJ’s decision nevertheless supplies the necessary

“accurate and logical bridge,” Woods, 888 F.3d at 694 (internal

quotation marks omitted), between the evidence and his findings

that Plaintiff’s impairments (A) qualified as “severe” at step two

of the SEP (Tr. 29), and (B) resulted in “moderate” limitation in

her ability to concentrate, persist, and maintain pace (“CPP”) (Tr.

31-32), but (C) did not cause her to incur time off-task greater

than three percent of an eight-hour workday in addition to standard

breaks (see Tr. 32).

The United States Court of Appeals for the Fourth Circuit

recently affirmed (in an unpublished opinion) an ALJ’s assignment

of a specific percentage of off-task time in the RFC. See Rebecca

J. v. Kijakazi, No. 22-1531, 2023 WL 3970022, at *3 (4th Cir. June

13, 2023) (unpublished). In Rebecca J., the ALJ determined that

the plaintiff “‘would be off task seven percent of the workday,’”

Rebecca J., 2023 WL 3970022, at *2, due to her need to irrigate and

steam her nose to alleviate symptoms from a perforated septum, see

id. at *3. The plaintiff “alleged that the

ALJ . . . insufficiently accounted for the requisite frequency and

duration of the nasal irrigation and steaming[,] . . . that her

treatments would result in a loss of more than 15% productivity in

12

any given day[,]” and “that the ALJ failed to build a logical

bridge from the objective evidence to his finding that [the]

plaintiff d[id] not need to undertake treatments as frequently or

for the duration that she claim[ed].” Id.

The Fourth Circuit rejected that argument, and provided the

following rationale:

As the district court correctly observed, the record in

this case is devoid of sufficient evidence, including

opinions and treatment notes, demonstrating that

Plaintiff would be off task more than seven percent of

the day to account for her nasal treatment. No physician

has prescribed this particular form of treatment, much

less made any recommendation as to frequency or duration.

And [the] plaintiff has produced no expert opinion

suggesting that she has limitations greater than those

accounted for in the RFC found by the ALJ. The ALJ

exhaustively considered the objective medical evidence

and [the] plaintiff’s subjective description of her

symptoms and found that [the] plaintiff’s statements

concerning the intensity, persistence and limiting

effects of these symptoms were not entirely consistent

with the medical evidence and other evidence in the

record. Specifically, the ALJ considered and explained

that the objective evidence did not support [the]

plaintiff’s claim that her impairments prevent her from

working because she has fatigue and needs to frequently

steam her throat due to excess mucous, or her claim that

she struggles to complete even routine daily tasks.

Id. (emphasis added) (internal quotation marks, citations, and

brackets omitted). Significantly, as the language emphasized above

makes clear, the Fourth Circuit both (A) found the ALJ’s discussion

of the evidence sufficient to support the seven percent off-task

finding, and (B) determined that the plaintiff had not proffered

evidence supporting a greater amount of off-task time. Id.

13

Very recently, another judge of this Court considered a

plaintiff’s challenge to an RFC finding that the plaintiff “could

understand, remember, and carry out instructions for 95 to 100% of

the time.” Bradley N.A. v. Bisignano, No. 1:25CV21, 2026 WL

539874, at *4 (M.D.N.C. Feb. 26, 2026) (unpublished) (McFadden,

M.J.). Notably, “[a]lthough the ALJ did not explain or set forth

a_formula_as _ to why she chose a five percent off task finding

instead of two percent or six percent,” the Court found that such

“lack of precision [wa]ls not a reason to reverse the decisionl[,

blecause[] the ALJ did not find evidence showing that [the

plaintiff]’s ability to understand, remember, and carry out

instructions was so compromised that he could not work[,]” i.e.,

“the ALJ found that [the plaintiff’s] symptoms caused some time off

task, but not a disabling amount of it.” Id. (emphasis added)

(citing Shaw v. Kijakazi, No. 1:20CV581, 2021 WL 3079905, at *9

(M.D.N.C. July 21, 2021) (unpublished), recommendation adopted,

2021 WL 6202788 (M.D.N.C. Aug. 23, 2021) (unpublished) (Osteen,

J.)). The Court additionally found that “the ALJ .. . adequately

supported her up to 5% off task finding by pointing to multiple

lines of evidence including objective medical evidence, treatment

history, [] daily activities, . . . [and] medical opinions,” and

that the plaintiff “failed to point to evidence that would compel

a_ different outcome.” Id. at 8 (emphasis added).

14

Similarly, here, although the ALJ did not expressly explain

the reasoning behind his three percent off-task finding (see Tr.

32-38), the Court can nevertheless trace the path of the ALJ’s

reasoning in finding that Plaintiff’s impairments caused her to

experience off-task time for three percent of an eight-hour

workday, i.e., that she experienced some limitation in her ability

to remain on-task, but not disabling limitations, see Shaw, 2021 WL

3079905, at *9. The ALJ acknowledged Plaintiff’s subjective

reports of “low back pain that radiated at times into the right

lower extremity,” “shortness of breath with activity,” “poor

quality mood, low motivation, loss of pleasure in activities, and

feelings of worthlessness,” “anxious feelings and panic attacks,”

“mood swings, irritability, and [] b[eing] argumentative,” as well

as “limitations in . . . completing tasks” and “needing breaks to

perform household chores.” (Tr. 33.) The ALJ, however, also

observed that Plaintiff could engage in the following daily

activities:

As for activities of daily living, [Plaintiff] testified

and reported that she could perform personal hygiene,

dress herself, and feed herself without difficulty. She

stated that she could prepare small meals, perform

household chores, shop in stores and online, and manage

finances. She managed her medical care

independently. [Plaintiff] reported that she was able to

provide care for a minor child. She reported travelling

[sic] out of state and had the ability to travel for

vacation. She reported that she drove wherever she

needed to go. She reported no difficulty with

understanding or following verbal or written

instructions. She reported spending time watching

15

television, playing games on the computer, and surfing

the internet.

(Id. (internal parenthetical citation omitted).) Plaintiff’s wide

range of daily activities provides support for the ALJ’s finding

that Plaintiff’s impairments resulted in off-task time for three

percent of a workday. See Bradley N.A., 2026 WL 539874, at *5

(noting that ALJ’s reliance on the plaintiff’s daily activities

supported his off-task time limitation, because “the performance of

th[o]se activities requires . . . remaining on task” (citing Medina

v. Commissioner of Soc. Sec., 831 F. App’x 335, 36 (2d Cir.

2020))). Ultimately, the ALJ found Plaintiff’s “statements

concerning the intensity, persistence and limiting effects of [her]

symptoms [] not entirely consistent with the medical evidence and

other evidence in the record” (Tr. 34), and Plaintiff did not

challenge that finding by the ALJ (see Docket Entries 9, 13).

Accordingly, the ALJ’s analysis of Plaintiff’s subjective symptom

reports supports the ALJ’s off-task time limitation. See Rebecca

J., 2023 WL 3970022, at *3 (rejecting the plaintiff’s challenge to

seven percent off-task finding in RFC, because “[t]he ALJ properly

considered [the] plaintiff’s ability to care for her personal needs

and perform activities of daily living in evaluating the

credibility of her subjective symptoms, . . . . and built an

accurate and logical bridge from the evidence he recounted to his

conclusion” (internal quotation marks omitted)).

16

The ALJ’s discussion of the objective medical evidence further

supports his off-task time limitation. Regarding Plaintiff’s back

and leg pain, the ALJ noted that “physical therapy

records . . . revealed no loss of range of motion with extension,

minimal loss of range of motion with side glide to the right and

left and moderate range of motion with forward flexion,” as well as

“negative bilateral straight leg raise test [and] negative slump

and clonus tests.” (Tr. 34 (internal parenthetical citation

omitted).) The ALJ further observed that “[p]hysical exams did not

reveal sensory deficits in any extremity and [Plaintiff] retained

normal strength in all extremities.” (Id. (internal parenthetical

citation omitted).) Concerning Plaintiff’s shortness of breath,

the ALJ remarked that “physical examinations during the period more

often noted that [Plaintiff] denied respiratory problems during

visits,” “[Plaintiff] reported that her asthma was much improved

with Symbicort, and that she had not used her rescue inhaler very

much,” “[p]roviders did not note any respiratory symptoms on

exams,” and “pulmonary function testing was unremarkable with

normal lung volumes.” (Tr. 35 (internal parenthetical citation

omitted).) With respect to Plaintiff’s mental impairments, the ALJ

pointed out that, although “[m]ental status exams noted at times

dysphoric, depressed, or anxious mood and affect[,] . . . at other

times, [Plaintiff] was observed with a euthymic mood, or described

as having a normal mood and affect,” as well as that “providers did

17

not note impairments in thought content, thought process, memory,

concentration, cognition, or orientation,” and “[Plaintiff] was

observed as appropriately dressed and groomed, and described as

pleasant or cooperative.” (Tr. 35-36 (internal parenthetical

citation omitted).) Those findings additionally support the ALJ’s

determination that Plaintiff’s impairments would cause some

impairment, but not disabling impairment, in her ability to stay on

task. See Rebecca J., 2023 WL 3970022, at *3-4 (approving ALJ’s

seven percent off-task limitation that lacked an express

explanation, where ALJ “exhaustively considered the objective

medical evidence” and “built an accurate and logical bridge from

the evidence he recounted to his conclusion [about the plaintiff’s

abilities]” (internal quotation marks omitted)); Bradley N.A., 2026

WL 539874, at *5-6 (determining that ALJ’s discussion of the

medical evidence supported her up to five percent off-task

limitation, “a finding which is legally correct, supported by

substantial evidence, and susceptible to judicial review”).

Furthermore, although Plaintiff contends that “[t]he evidence

in the record shows it is possible [she] could be off task more

than 10% of the workday, which would be work preclusive” (Docket

Entry 9 at 14 (block formatting omitted), Plaintiff has not pointed

to evidence that would have compelled the ALJ to find work-

preclusive off-task time. In support of that assertion, Plaintiff

contends that she might experience off-task time “to recuperate

18

after walking, standing, using stairs, or doing light lifting” due

to shortness of breath, back pain, and leg pain. (Docket Entry 9

at 15 (bold font omitted).) However, Plaintiff bases off-task time

arising from those impairments solely on her subjective complaints

(and her mother’s subjective reports) (see id. at 15-16 (citing Tr.

53, 58, 63-66, 69 (Plaintiff’s hearing testimony), 251-67 (Function

Reports from Plaintiff and her mother))), and the ALJ found

Plaintiff’s subjective symptom reports “not entirely consistent

with the medical evidence and other evidence in the record” (Tr.

34), and specifically found, with regard to Plaintiff’s “rather

significant allegations regarding shortness of breath with almost

any sort of exertion or activity despite medication,” that “a

review of the evidence did not suggest her condition was as severe

or limiting as she alleged” (id. (internal quotation marks

omitted)), findings that Plaintiff did not challenge (see Docket

Entries 9, 13). Indeed, the ALJ clearly did not find that

Plaintiff’s lumbar and respiratory impairments required her to rest

every 15 minutes, as the ALJ found Plaintiff remained able to

“stand and/or walk for 6hrs” without an allowance for rests or

alternating position. (Tr. 32.)

Plaintiff additionally argues that she would need off-task

time “due to panic attacks” which required her to “lay [sic] down

for 15 minutes or longer” (Docket Entry 9 at 15 (bold font

omitted)) and “intermittent explosive disorder, hear[ing] voices,

19

[] mood swings, . . . get[ting] into arguments[,]” and “depression

[that] affects [her] energy level and motivation to complete tasks”

(id. (internal quotation marks omitted)). Again, Plaintiff

primarily supports that allegation with her own (and her mother’s)

subjective statements (id. (citing Tr. 60, 62, 251-67)), but the

ALJ found Plaintiff’s subjective statements “not entirely

consistent with the [] evidence” (Tr. 34), and specifically

observed as follows:

[Plaintiff]’s level of activity [] suggests that she was

not as limited as [s]he implied. Examples included that

she was providing some care to her nephew including

driving him to school. She also managed her own medical

care and finances. . . . [She] reported during the

mental consultative exam that she did not stop working

due to disability, but rather was fired for a violation

of a workplace policy.

(Tr. 36 (internal parenthetical citation omitted).) Notably,

Plaintiff did not challenge those findings by the ALJ. (See Docket

Entries 9, 13.)

Nonetheless, Plaintiff maintains that her “testimony about her

anxiety/depression symptoms including panic attacks, mood swings,

irritability, hearing voices, and depression . . . is supported by

medical evidence in the record.” (Docket Entry 9 at 15.) In

support of that assertion, Plaintiff points to the reconsideration-

level state agency psychological consultant’s statement that

Plaintiff had a “history of hallucinatory experience, mixed

emotions (anxiety and depressive reaction, mood swings,

irritability, anger, fidgety), social avoidance and alleged pain”

20

(id. (citing Tr. 99)), as well as his moderate findings in the

paragraph B criteria (id. at 16 (citing Tr. 98)), and his opinion

that her mental symptoms “‘would occasionally interfere with her

ability for sustained concentration, persistence or for task

completion’” (id. (quoting Tr. 102)). Those statements and

opinions would not have compelled the ALJ to find work-preclusive

levels of off-task time, because a “moderate” finding in the mental

functional area of CPP in the paragraph B criteria meant that

Plaintiff’s ability to sustain CPP remained “fair,” see 20 C.F.R.

Pt. 404, Subpt. P, App’x 1, § 12.00F.2.c (emphasis added), and,

thus, did not equate to a disabling level of off-task time.

Moreover, despite finding Plaintiff’s mental symptoms would

“occasionally interfere” with her ability to maintain CPP, the

consultant also concluded that Plaintiff “would be able to complete

tasks at an acceptable pace” (Tr. 102) and remained able to perform

simple, routine, and repetitive tasks (“SRRTs”) with no allowance

for off task time (see Tr. 98).

Plaintiff additionally relies on the statements of

consultative psychological examiner Janice L. McGilberry, LCMHCS,

LPA (“LPA McGilberry”) that Plaintiff “reported depressed symptoms

3-4 days/week, most of the day; sleep disturbances 2-5 days/week;

irritability and argumentative 1x/week; distracted by extraneous

stimuli; occasionally interrupts or intrudes on others; becomes

distracted in conversations” (id. (citing Tr. 689-90)), as well as

21

LPA McGilberry’s notation that Plaintiff “d[id] not appear to

exaggerate or minimize her problems” (id. (quoting Tr. 691)).

Again, those statements would not have compelled the ALJ to adopt

work-preclusive off-task limitations, because LPA McGilberry

clearly described Plaintiff’s subjective reports of mental

symptoms. (See Tr. 689-90 (reflecting Plaintiff’s reports of

mental symptoms under heading “History of Present Illness” (bold

and all-caps font omitted)).) Significantly, Plaintiff glosses

over the fact that LPA McGilberry’s objective examination did not

reveal CPP deficits (see Tr. 691-92 (documenting no “difficulties

with . . . alertness,” “adequate attention and concentration,” and

error-free serial 3s and mathematical calculations)) and,

consistent with that, LPA McGilberry found that Plaintiff had the

ability to maintain CPP to perform SRRTs without mention of off-

task time (see Tr. 693).

Plaintiff further points to remarks by mental health providers

regarding Plaintiff’s mental symptoms such as panic attacks and

angry blow-ups. (See id. at 17 (citing Tr. 495, 497, 501, 504,

506-07, 509-10, 719, 737-39).) Once again, Plaintiff’s subjective

reports form the basis of those providers’ statements, as the

providers did not indicate that they witnessed Plaintiff

experiencing a panic attack or an angry blow-up and, beyond noting

anxious and depressed mood and affect at times, those providers

documented normal findings on mental status examinations. (See Tr.

22

494, 497, 500, 503, 506, 509, 512, 515, 519, 521, 524, 527, 530,

534, 718-19, 738-39.) Moreover, no provider of record has

diagnosed Plaintiff with intermittent explosive disorder (see Tr.

301-1095), and Plaintiff and her mother have both denied that

Plaintiff had problems getting along with others (see Tr. 256, 518,

691). Furthermore, so far as the record reflects, Plaintiff did

not report “hearing voices” or any other type of auditory

hallucination or psychotic symptom to any of her providers of

record (see Tr. 301-1095), including LPA McGilberry (see Tr. 690)

and consultative medical examiner Dr. Stephen Burgess (see Tr. 700-

O01), and she actually denied psychosis and hallucinations on two

occasions (see Tr. 518, 690).°

In light of the foregoing discussion, Plaintiff has not shown

that the record evidence compelled the ALJ to adopt a work-

preclusive off-task time limitation in the RFC. See Rebecca J.,

2023 WL 3970022, at *3 (“[T]he record. . . is devoid of sufficient

evidence, including opinions and treatment notes, demonstrating

that [the p]laintiff would be off task more than seven percent of

the day ... .” (internal quotation marks omitted)); Stitely v.

Colvin, No. 14-2302, 2015 WL 4621292, at *1 (4th Cir. Aug. 4, 2015)

° Although Plaintiff has, at times in the record, suggested she has

attention deficit disorder (“ADD”) and obsessive-compulsive disorder (“OCD”) (see

Tr. 71, 260, 266), no provider of record has diagnosed Plaintiff with those

mental disorders (see Tr. 301-1095). In fact, LPA McGilberry ruled _out ADD as

a diagnosis based, in part, on Plaintiff’s denials that she “often faill[ed] to

give close attention to details,” “often ha[d] difficulty sustaining attention

in tasks,” and “often ha[d] difficulty organizing tasks” (Tr. 690).

23

(unpublished) (“[The plaintiff] points to no overlooked evidence,

aside from his own allegations, which the [ALJ] found not entirely

credible, that would substantially aid his case.” (emphasis

added)); Bradley N.A., 2026 WL 539874, at *6 (“[The plaintiff] does

not point to any other evidence that would compel greater

limitations than those that the ALJ found. ... [T]he ALJ pointed

to more than substantial evidence showing why [the plaintiff] did

not suffer disabling limitations in... . staying on task. No more

is regquired.”); Welch v. Saul, No. 1:19CV189, 2020 WL 4586882, at

*§ (W.D.N.C. Aug. 10, 2020) (unpublished) (“[T]he ALJ’s

time-off-task limitation is reasonable and supported by evidence in

the record. A claimant has the burden to prove the extent of her

functional limitations; it is not the ALJ’s burden to prove a lack

of limitations. In this case, [the p]llaintiff did not meet the

burden of proving further functional limitations.” (internal

quotation marks, citation, and brackets omitted)).'°

10 Even assuming the evidence Plaintiff described in her brief “shows it

is possible [she] could be off task more than 10% of the workday” (Docket Entry

9 at 14 (emphasis added) (block formatting omitted)), “‘[t]he substantial

evidence standard presupposes a zone of choice within which the decisionmakers

can go either way, without interference by the courts,” and “[a]Jn administrative

decision is not subject to reversal merely because substantial evidence would

have supported an opposite decision.” Bradley N.A., 2026 WL 539874, at *6 (some

internal quotation marks and ellipsis omitted) (quoting Dunn v. Colvin, 607 F.

App’ 264, 266 (4th Cir. 2015)). In Plaintiff’s Reply, she asserts that her

assignment of error raises “legal errors in the ALJ’s decision” (Docket Entry 13

at 5), rather than the ALJ’s failure to support his decision with substantial

evidence, and, thus, that the “‘zone of choice’ doctrine” does “not apply” (id.).

Plaintiff’s attempt to reconfigure her issue on review as a claim of legal error

falls short. Plaintiff has not argued the ALJ violated any statute, regulation,

or SSA policy by including a specific time off-task percentage in the RFC. (See

Docket Entries 9, 13.) Rather, she maintains that the ALJ failed to explain the

off-task finding, i.e., that he did not point to substantial evidence to support

the finding (see id.), and Plaintiff herself points to record evidence she

(continued...)

24

As discussed above, Plaintiff has relied on multiple cases

outside of this district that remanded because the ALJs did not

provide express discussions of the off-task time percentages in the

RFCs. (See Docket Entry 9 at 9-13 (citing Michelle A., Armstrong,

Cross, Beth Ann O., Berry, Abdul K., Keith L., Bibey, Cannon,

Patricia W., Kilgo, Kennedy, Conary, and Kane).) As the Court in

Bradley N.A. noted, most of those out-of-district cases predated

Rebecca J., see Bradley N.A., 2026 WL 539874, at *7, which,

although unpublished, signals the Fourth Circuit’s approval of a

specific off-task time percentage in the RFC that the ALJ did not

expressly explain, but that the court could meaningfully review,

given the ALJ’s discussion of substantial evidence supporting the

off-task limitation and the absence of evidence that compelled a

different outcome, see Rebecca J., 2023 WL 3970022, at *3-4.

Moreover, judges in this district have long held that specific

off-task time percentages in RFCs do not constitute grounds for

remand so long as, like here, the ALJs provide substantial evidence

to support the limitations. See Bradley N.A., 2026 WL 539874, at

*7 & n.7 (citing, inter alia, Doorey v. Kijakazi, No. 1:20CV673,

10 (...continued)

believes supported work-preclusive off-task time (see Docket Entry 9 at 14-17).

As such, the “zone of choice” doctrine remains applicable to Plaintiff’s instant

assignment of error. See Rebecca J., 2023 WL 3970022, at *3-4 (treating the

plaintiff’s challenge to off-task time percentage in RFC as one involving

substantial evidence and finding ALJ’s decision supplied substantial evidence to

support off-task finding); Bradley N.A., 2026 WL 539874, at *6 (noting that “zone

of choice” doctrine permitted ALJ to find the plaintiff would remain off-task for

up to five percent of the workday so long as ALJ supported off-task finding with

substantial evidence).

25

Docket Entry 22 at 14-15 (M.D.N.C. Oct. 26, 2021) (Webster, M.J.)

(five percent), recommendation adopted, slip op. (M.D.N.C. Nov. 16,

2021) (Schroeder, C.J.), Shaw, 2021 WL 3079905, at *8-10 (no more

than ten percent), Link v. Saul, No. 1:19CV662, 2020 WL 5044038, at

*9 (M.D.N.C. Aug. 26, 2020) (unpublished) (up to ten percent),

recommendation adopted, slip op. (M.D.N.C. Sept. 10, 2020) (Biggs,

J.), Manasrh v. Berryhill, No. 1:17CV1125, Docket Entry 15 at 16-20

(M.D.N.C. Dec. 13, 2018) (unpublished) (Webster, M.J.) (five

percent), recommendation adopted, slip op. (M.D.N.C. Jan. 4, 2019)

(Schroeder, C.J.)); see also Christopher §.S. v. O’Malley, No.

1:23CV341, Docket Entry 13 at 10-16 (M.D.N.C. June 24, 2024)

(unpublished) (Webster, M.J.) (three percent); Wesley v. Kijakazi,

No. 1:20CV364, 2021 WL 4129234, at *7-9 (M.D.N.C. Sept. 9, 2021)

(unpublished) (no more than 10 percent), recommendation adopted,

slip op. (M.D.N.C. Oct. 14, 2021) (Tilley, S.J.). Given the Fourth

Circuit’s ruling in Rebecca J. and the above-cited long line of

cases from this district upholding specific off-task time

limitations where supported by substantial evidence, the Court

declines to follow the reasoning of the out-of-district cases cited

by Plaintiff.

In sum, because the ALJ sufficiently explained the three

percent off-task time limitation in the RFC to permit meaningful

judicial review, Plaintiff’s first and only issue on review fails

as a matter of law.

26

III. CONCLUSION

Plaintiff has not established an error warranting remand.

IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is AFFIRMED, and that this action is

DISMISSED with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

April 2, 2026

27